Friday, 1 February 2008

Friday miscellanea number 6

Thanks to Scott Wortley for drawing my attention to the case and written answer canvassed in items (a) and (c).

Today’s word of the day, from Mr Duff’s initial writ in Duff v Strang, is “skaithless” (Mr Duff having asked that the defender be ordained to find caution “that the Pursuer be harmless and skaithless in his body and property”). The Dictionary of the Scots Language defines “skaith” as “damage, hurt, injury, harm, mischief”.

(a) Lawburrows in the High Court

The remedy of lawburrows – allowing a person to apply for another to find caution not to harm him, his family or property – has been described as “a method of primitive law enforcement in the absence of an effective police force and system of public prosecution” (JM Thomson, Delictual Liability, 3rd edn (2004), 5).

But as Thomson notes, “there is no doubt that the action is still technically competent”, and Duff v Strang[2008] HCJAC 4 is a recent example. The point here is a procedural one: after the sheriff held that Mr Duff’s application was incompetent and irrelevant, Mr Duff attempted to bring his decision under review in the High Court by way of stated case. In a detailed opinion, the court rejects that argument, reserving opinion on whether an appeal to the sheriff principal or the Court of Session would be competent in such a case.

(b) Top marks for sheriff’s tough love

An earlier post on this blog noted a deferral of sentence by Sheriff Foulis on Wednesday 19th December last year. Sentence on Richard Mullen, 15, described as “responsible for a crimewave in Blairgowrie” was deferred until the end of January on the condition that he did not approach or contact his father or brothers. Yesterday’s Scottish edition of the Metro reported as follows (p21):

“A one-boy crimewave has been a model citizen since a sheriff banned him from seeing his family, Perth Sheriff Court heard yesterday. Sheriff Lindsay Foulis called it ‘one small step for man’. As a reward, the ban looks set to be lifted. Richard Mullen, 16, from Blairgowrie, Perthshire, was handed the unique order after being charged with 50 crimes in just nine months.”

(c) Emergency workers, again

I have posted earlier about the extension of the Emergency Workers (Scotland) Act 2005 (see, most recently, this post). The following written Parliamentary answer was issued on Wednesday (see this link):

Margaret Curran (Glasgow Baillieston) (Lab): To ask the Scottish Executive what consultation was undertaken in relation to the extension of the Emergency Workers (Scotland) Act 2005.

Shona Robison: The extension of the Emergency Workers (Scotland) Act 2005, to cover doctors, nurses and midwives whenever they are on duty, fulfilled a manifesto commitment. Although no additional consultation was undertaken, the arguments of different stakeholders have been well rehearsed when the act was originally debated in Parliament in 2005.

The manifesto commitment was somewhat broader than suggested here. It was in the following terms:

“Those who work in the NHS do Scotland proud. They deserve the right to a safe working environment without the fear of assault. All too often they face violence and aggression. An SNP government will tackle this by extending Emergency Workers legislation to cover all NHS staff. (page 36 of the manifesto, available here as a PDF file).”

It is easy to understand why this has not (yet) been done, however: given the terms of section 8 of the Act, extending it to all NHS staff would probably not be competent by way of statutory instrument, but would instead require primary legislation. Furthermore, it is doubtful that the commitment was ever meant to be quite as broad as a literal reading would suggest: was it really intended to cover NHS staff (even lawyers, perhaps?) who do not come into contact with the public as part of their jobs?

I first encountered the 1429 Act around the time that the Antisocial Behaviour etc. (Scotland) Act 2004 was going through its Bill stages, and for all Professor Thomson's comments, I have to ask which of the two regimes now appears the more primitive?

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About me

James Chalmers

To view my (currently very spartan) profile on the Glasgow Law School website, click here. I ceased working at the University of Edinburgh at the end of July 2012, but an archived version of a more complete profile from there is available here.